In July 2005, Judge Reinhardt wrote an 2-1 opinion joined by Judge Paez in Belmontes v. Brown ruling that California's "catchall" instruction to juries in death penalty cases did not provide enough opportunity to consider favorable evidence for the defendant. Judge O'Scannlain dissented:

[T]he majority strains mightily--and unpersuasively--to perceive constitutional error in the comprehensive and perfectly proper jury instructions given by the state trial judge. Because there simply is no such error, and the Supreme Court has expressly told us so on two separate occasions, I must respectfully dissent from the court's reversal of the district court's denial of the petition for the writ with respect to the penalty phase.

I disagree about the deja vu. Payton was an AEDPA case with its attending "objectively unreasonable" standard of review. In Payton, Breyer admitted that he wouldn't have joined the opinion if review were de novo.

And this case called for de novo review. Reinhardt may have been wrong, but he was not straining mightily.

Trying not to derail, but the whole "are they really leftist?" thing bugs me. All political directional terms are relative. Left of center for a Supreme Court justice means left of center for the Court, or maybe for the country, not left of center on some hypothetical "objective" scale. This scale exists only in the heads of people who do not like where center is in this country.

Since I believe it's important to distinguish judicial "conservatism" or "liberealism" from political "conservatism" or "liberalism," I took Orin's "left-of-center" comment to refer to the four Justices in question as judicially left-of-center. This seems both appropriate (since the subject is a judicial opinion) and accurate given the makeup of the Supreme Court and the federal courts generally. What the politics of the Justices in question may be is not the directly relevant question (and under one plausible view is irrelevant).

Don't despair. Now that the judicial fillabuster has been exposed as unconstitutional, we're only two years away from Justice Chomsky. Of course, Belmontes's mitigating evidence was his christanity, so Chomsky would have likely reversed.

One only has to read Stevens' antitrust jurisprudence to see hostility to markets, which is certainly a hallmark of most of the left and very little of the non-Buchananite right. Stevens was, after all, a big proponent of the per se rule, and the guy who tried to put it back sub rosa through quick look analysis.

Don't get me wrong, he's no Warren, Brennan, or KKKommunist Hugo Black, Stevens is certainly well on the left.

I wonder if there is anything to the fact that the first decision of the term (ignoring per curiam decisions) is a 5-4 split. I wonder if that is a sign of the end of the so called seeking of unanimoty in the opinions.

It is hard to read the decision, and then not consider any Justice that would dissent as a left winger. The issue was specifically whether an instruction could be construed as a directive to exclude mitigating evidence that was presented and argued at length before the jury. The case was not about whether or not the death penalty is constitutional. The reason I consider the dissenters and Reinhardt left wingers is it obvious that they don't want to consider the issue at hand, they want a result that will invalidate the death penalty in this case and as many other cases down the road as possible.

I'm waiting for the reversal of Judge Reinhardt's more notorious decision: a murder conviction is reversed because the victim's family wore buttons with the victim's picture. Prof. Kerr blogged about it here. I think that case recently went through oral argument. Does anyone know when we might expect a scathing reversal decision?

Are there any statistics as to how often Reinhardt has been reversed vs. other judges? I think he may hold the title of most reversed judge still sitting, but you wouldn't know that by reading his Wikipedia entry, which sounds like it was written by his law clerks, or his agent.

I do recall a quote from him a while back to the effect that he expected to be reversed a lot, but they (SCOTUS) wouldn't be able to reverse every decision he made. A great attitude, huh?

This puts to bed any concerns that the Catholic justices on the Court will have their views on US law informed by their faith. The all-Catholic majority appear not to have received -- or to have given any regard to -- their Pontiffs' views on the issue. Remember that as these same 5 roll back abortion rights.

The Concurrence is teeing up what is an impending decision addressing a fight currently raging in the fifth circuit's penry jurisprudence. Whether the Eighth Amendment requires "full" consideration of relevant mitigating evidence, or only "some."

The Court has taken up 3 Penry cases this term, 2 of which expressly present that issue (Smith, and then Cole and Brewer).

The jury was asked whether there was "any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime."

The issue on appeal was whether that question allowed the jury to give effect to the defendant's evidence that he had become a good christian in prision.

The jury question is backward-looking, to the date of the crime. The mitigating evidence is post-arrest. Do you see why reasonble Justices might disagree? Especially when, as here, no deference is owed to the state court's application of law?

I have no doubt that a judge's view of the death penalty often finds expression in these cases. But I think you're wrong to assume that only the liberals are guilty of this, and that only the conservatives address "the issue at hand."

It is hard to read the decision, and then not consider any Justice that would dissent as a left winger. The issue was specifically whether an instruction could be construed as a directive to exclude mitigating evidence that was presented and argued at length before the jury. The case was not about whether or not the death penalty is constitutional. The reason I consider the dissenters and Reinhardt left wingers is it obvious that they don't want to consider the issue at hand, they want a result that will invalidate the death penalty in this case and as many other cases down the road as possible.

I'm sorry but you're badly out of your element here donnie. You get the issue fairly correct, which means you COMPLETELY miss the point about Payton, the primary precedent for this case, being heard on collateral habeas review.

In Payton, which is an AEDPA 2254(d)(1) case, the decision gets a compounded deference - once, it get's the "reasonable likelihood" standard for the jury under 8th amendment jurisprudence, and then it gets the "objectively unreasonable" standard under 2254(d)(1).

But this isn't a 2254 case; the federal habeas petition predated AEDPA. As Breyer noted in Payton, it was the compounded "deference" that did the trick. That's not here.

You obviously have some axe to grind, because this case is all a disagreement about whether the jury actually felt like factor(k) foreclosed them from considering evidence of future conduct as a mitigating factor. I happen to think that the dissent gets the best of this by a large margin, but however you might weigh the evidence - its a highly factual dispute the resolution of which is hardly a litmus test for "left wingers."

moreover, scalia and thomas don't even care about that issue. i don't know how carefully you paid attention to their concurrence, but they're expressly ignoring that issue, because they don't think the 8th amendment even requires full consideration and effect to be given to mitigating evidence (which is just wrong under smith, tennard, penry II) precedent. They hate that line of cases and continue to write separately, every time, to overturn that precdent. So their votes aren't really on the issue over which the two groups are fighting.

That means that of the 7 judges who actually thought long and hard about this issue, it was actually a 4-3 for the idea that factor(k) was unconstitutionally applied here.

The most we know is that it is NOT the case that they definitely agree with scalia on that point. you need 4 votes on cert and you know that you've got at least the 4 dissenters voting for cert on the fifth circuit cases. those votes are going to go to reversal. the question is wehther any of the remaining 5 are going to defect. scalia and thomas clearly are not - every time this issue comes up one of them writes separately to say that they disagree with the precedent and they would overturn it. the three in the air are kennedy alito and roberts.

i have a hard time believing all 3 of those guys are going to jump to the scalia camp, which would require an express rebuke of precdent. i think alito most likely, followed by roberts, then kennedy.

so i guess in answer to your question, in the end i don't think alito and roberts would go with scalia on this, but it's hard to read that out of this opinion because their ruling is also consistent with the roberts-minimalist thingy, which is not mutually exclusive with the scalia position, if it were to be fairly presented.

Kovarsky.
Maybe you are right, I don't understand the issue. To me the issue comes down to the fact that the defendent took an iron bar, with which he armed himself before entering the house and beat to death a 19 year old girl, just because she was home at the wrong time. Then a jury of his peers, after hearing all the mitigating evidence that the defense wished to present, forward or backward looking, sentenced him to death.

To you the issue is whether an inartfully worded instruction can be used to invalidate the will of the people enacted into law and applied to the facts with due deliberation by a jury. To me the issue is whether justice will be thwarted by judicial elite that will use any pretext to invalidate the death penalty.

I was actually a juror on a death penalty case in California in 1981. As it turns out we returned a guilty verdict on a lesser charge, so we never went to the penalty phase of the trial. But I'll tell you, if the judge allowed us to hear several hours of testimony about forward mitigation then we as a jury would just naturally assume that the judge let us hear it because it was relevent to our verdict.

Sorry, I got caught up in a string of agressive responses, and I guess I lumped yours in. I just generally find that when people invoke the "look how long it's taking to execute these people" things, they do so in an attempt to show that we shouldn't decide these things in the offender's favor.

The reality is that the incentives are screwed up, and there are too many eleventh hour appeals, but that the state courts are largely responsible for this as well.

I guess as a voter I'm against the death penalty, but I certainly don't think all forms are always unconstitutional under the eighth amendment. I think you (not you, personally) have to be pretty naive to think that all these cases are frivolous, and that the state courts are always getting these things right.

Not to mention AEDPA is the most dreadful piece of statutory drafting i've ever seen.

There is a big difference between constitutional issues involving the death penalty and abortion.

My reading of the Fifth Amendment to the Constitution is that the death penalty can be imposed as long as the defendant was given due process of law. As a Justice, I would have to respect that, even though I personally disagree with imposition of the death penalty in most cases and if I were on the jury in this case, I would probably have argued and voted against imposing the death penalty. I cannot say that, in this case, there was any failure of "due process."

However, my reading of the Constitution persuades me that Roe v Wade was wrongly decided and I would have no problem overruling it. My opposition to Roe dates from the time I first read it prior to my conversion to Christianity. It is simply a horrible decision on many different levels.

In addition to the off the bat 5-4 issue that intrigues. I wonder why the Court ever granted cert on this case. California no longer applies factor k in the way it was applied in 1982. Does anyone know if there are other states that have potentially backward looking only clauses? If no other state has a similar case then this seems like a case that is not cert-worthy (because it likely won't come up again).

In addition to the off the bat 5-4 issue that intrigues. I wonder why the Court ever granted cert on this case.

Actually, this happens quite frequently in jury charge cases. A lot of times the same instruction will come up over and over again. Many times the court will say it's wrong, but find some way to affirm the conviction/deny the habeas petition (the error wasn't harmless, there was not a 'reasonable likelihood' that a jury felt foreclosed from considering something, etc.). But then the state will generally change the instruction.

But just because a class of offenders possessing a particular constitutional claim is closed doesn't mean the Court won't consider that claim again, repeatedly. In fact, quite the opposite is true. The Court has taken factor (k) cases out of Cal. a number of times. A similar circumstance exists in Texas, where the class closed in (i think) either '91 or '93. The court has nonetheless taken a number of those cases since then, including 3 in the last month.

There are at least of reasons. First and foremost is that the Supreme Court will act as more of an error-correcting court in death cases. Whatever the stereotypes about certain conservative justices, they take these cases very seriously and if there's a blatant mistake, many times they'll take the case.

Second, even though a specific statutory provision might be inoperative, that doesn't mean that other members of the class in earlier stages of litigation wouldn't benefit from the clarification of the rule.

Third, a lot of the same questions arise from state to state (when you're talking about how accommodating to mitigating evidence state capital jury instructions must be). Just because the court announces a decision in a case for which the statutory basis is now inoperative, it doesn't mean that the issue won't help other states figure out how to set up their statutory schemes.

I was actually a juror on a death penalty case in California in 1981. As it turns out we returned a guilty verdict on a lesser charge, so we never went to the penalty phase of the trial. But I'll tell you, if the judge allowed us to hear several hours of testimony about forward mitigation then we as a jury would just naturally assume that the judge let us hear it because it was relevent to our verdict.

Well, I guess you didn't read the part of the dissent here where the jurors expressly asked whether they were allowed to take into account the "future evidence" and were told that they were not.

Look, I'm not saying the guy shouldn't be put to death, but a rule is a rule is a rule. If the rule is the jury should get to give effect to everything, that's the rule. Consistently resorting to the heinousness of the crime doesn't get you anywhere.

Well, I guess you didn't read the part of the dissent here where the jurors expressly asked whether they were allowed to take into account the "future evidence" and were told that they were not.

That didn't happen. A juror asked if they were allowed to take into account the possibility of psychiatric care, and were told they were not. The dissent decided that this was because it was "future," but it's a lot more plausible that it was because it wasn't "evidence." That is, it had never been raised as a mitigating factor by the defense, so no evidence had been presented to that effect, so the jury couldn't consider it.

Kovarsky~
In response to your first point, considering the limited number of cases granted does this seem like the best use of SCOTUS' resources? I thought cert-worthy meant that it was an important and wide ranging issue that affects substantially more than just the parties involved.
To your second point- I read somewhere (sorry but I don't remember where, finals time is almost upon me and my brain is slightly fried) that the current case is the last person in the class or incredibly close to the last person.
To your third point- I concede that but go back to my question- does any other state have a backward looking only rule? If not then I don't see how much use this is to other states (unless of course states are considering adopting a similar provision).

(1) You're generally right about most categories of cases, but death cases are a little different. There's a bunch of slight organizational differences for death cases, but the upshot is that they're more likely to grant cert to correct a death case, even if there's not a split. there's mechanisms for them to do this even without writing an opinion.

(2) the court will grant cert in a lot of these cases, even close to the end. the penry class in texas has, i believe, only 7 of the original 46 subject to the instruction left, and the court has already granted 3 certs on that this term.

(3) i now see your point about "backwards looking." no. that's unconstitutional now. but there are still things the court might want to say about the capaciousness of jury instructions - other than their chronological orientation - for which the case may be a desirable vehicle.

Kovarsky,
All that makes sense and I guess it isn't that suprising that the Court granted cert. You said in point 1 that there's mechanisms for them to do this even w/o writing an opinion. I'm assuming that you are including summary reversals in that. Do you (or anyone else for that matter) know how the Court chooses to grant cert and hear arguments rather than summary reversals using per curiam opinions?